Tawas Industries

National Labor Relations Board - Board Decisions

May 22, 1996

321 N.L.R.B. 269 (N.L.R.B. 1996)

269
321 NLRB 38
TAWAS INDUSTRIES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Tawas Industries, Inc. and Margaret Loeffler. Case
7–CA–37101
May 22, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND FOX
On February 1, 1996, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in response to
the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Tawas Industries, Inc., Tawas City,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for acting as an officer of, or otherwise
supporting or assisting, Tawas Independent Workers
Association or any other union.
(b) Enforcing rules prohibiting solicitation or dis-
tribution against employees because they act as officers
of or otherwise support or assist Tawas Independent
Workers Association or any other union.
(c) Suggesting that employees abandon Tawas Inde-
pendent Workers Association as their collective-bar-
gaining representative, and deal directly with manage-
ment.
(d) Enforcing and maintaining rules in its collective-
bargaining agreement with the Union which prohibit
employees from making false statements concerning
any employees, Tawas Industries, Inc., its manage-
ment, its supervisors, or its products.
(e) Enforcing and maintaining in its collective-bar-
gaining agreement with the Union’s overly broad rules
prohibiting unauthorized solicitation and distribution at
all times, including employees’ nonworking time.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Margaret Loeffler full reinstatement to her former job
or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(b) Make Margaret Loeffler whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter notify the em-
ployee in writing that this has been done and that the
discharge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility, in Tawas City, Michigan, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 13, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1994, unless otherwise indicated.
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any employee for acting as an officer of, or
otherwise supporting or assisting, Tawas Independent
Workers Association or any other union.
WE WILL NOT enforce rules prohibiting solicitation
or distribution against our employees because they act
as officers of or otherwise support or assist Tawas
Independent Workers Association or any other union.
WE WILL NOT suggest that our employees abandon
Tawas Independent Workers Association as their col-
lective-bargaining representative, and deal directly with
us.
WE WILL NOT enforce and maintain rules in our col-
lective-bargaining agreement with the Tawas Independ-
ent Workers Association which prohibit employees
from making false statements concerning any employ-
ees, Tawas Industries, Inc., its management, its super-
visors, or its products.
WE WILL NOT enforce and maintain in its collective-
bargaining agreement with the Union’s overly broad
rules prohibiting unauthorized solicitation and distribu-
tion at all times, including employees’ nonworking
time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Margaret Loeffler full reinstate-
ment to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Margaret Loeffler whole for any loss
of earnings and other benefits resulting from her dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Margaret Loeffler, and WE
WILL, within 3 days thereafter, notify her in writing
that this has been done and that the discharge will not
be used against her in any way.
TAWAS INDUSTRIES, INC.
Richard F. Czubaj, Esq., for the General Counsel.
Scott D. Norton, Esq. (Sullivan, Ward, Bone, Tyler & Asher),
of Southfield, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Tawas City, Michigan, on September 7,
1995. On a charge filed on April 13, 1995,1 by the Charging
Party, Margaret Loeffler, an individual (Loeffler), and an
amended charge filed by Loeffler on May 18, 1995, the Re-
gional Director for Region 7 issued the complaint in this
case on May 24, 1995, alleging that the Respondent, Tawas
Industries, Inc. (Tawas), had engaged in unfair labor prac-
tices violating Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The complaint alleges that Tawas
violated Section 8(a)(1) of the Act by maintaining rules re-
stricting employee solicitation and distribution, maintaining
and enforcing a rule restricting employee statements, and by
suggesting that employees bypass their union, Tawas Inde-
pendent Workers Association (the Union), and deal directly
with Tawas. The complaint also alleges that Tawas violated
Section 8(a)(3) and (1) by discharging Loeffler because she
assisted the Union, engaged in concerted activity, and to dis-
courage employees from engaging in similar activities.
Tawas has denied these allegations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Tawas, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Tawas, a corporation, manufactures filters for the auto-
motive industry at its facility in Tawas City, Michigan,
where it annually sells and ships products, goods, and mate-
rials valued in excess of $50,000 directly to points outside
the State of Michigan. Tawas admits and I find that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and Tawas denies, that the Union,
is a labor organization within the meaning of Section 2(5) of
271TAWAS INDUSTRIES
2 Sec. 2(5) of the Act provides:
The term ‘‘labor organization’’ means any organization of any
kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or conditions of work.
the Act.2 The record demonstrates that the Union exists for
the purpose of dealing with Tawas concerning grievances,
wages, rates of pay, hours, and conditions of employment.
Thus, the Union and Tawas are parties to a written collec-
tive-bargaining agreement, effective from October 1, 1993,
until September 30, 1996. Under that agreement, Tawas rec-
ognizes the Union as the exclusive collective-bargaining rep-
resentative of its production employees at its Tawas City fa-
cility. The agreement covers wage rates, hours of work,
fringe benefits a grievance procedure, union dues checkoff,
other conditions of employment, and has a union-security
provision. The record also shows that the Union filed a
grievance on Loeffler’s behalf on March 31, 1995, alleging
that her discharge violated the collective-bargaining agree-
ment. Finally, the testimony of employees Loeffler and
Emily South, shows that Tawas’ employees participate in the
Union as officers and stewards. I find from these facts that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. Yale New Haven Hospital, 309 NLRB
363, 364 (1992).
III. ALLEGED UNFAIR LABOR PRACTICES
A. Margaret Loeffler’s Discharge
1. The facts
When Tawas’ chairman, Raymond Allen, and its President
Gary Holley acquired it on October 15, 1992, the Union was
the exclusive collective–bargaining representative of the pro-
duction employees at its Tawas City facility. At that time,
Tawas and the Union were parties to a collective-bargaining
agreement covering the bargaining unit. In 1993, Tawas and
the Union executed the current collective-bargaining agree-
ment, effective from October 1, 1993, until September 30,
1996, covering the same production employees. Allen,
Holley, and Plant Manager Larry Hughes signed the agree-
ment for Tawas.
When Allen and Holley acquired Tawas, employee Willard
Rempert was the Union’s president. Allen dealt with Presi-
dent Rempert ‘‘a couple of times.’’ According to Allen,
Rempert approached him on those occasions with ‘‘[s]mall
things he wanted to talk about, but no major things.’’
Rempert’s successor as union president, employee Emily
South, signed the current collective-bargaining agreement
with Tawas. South remained president of the Union until the
summer of 1994.
At the trial, Tawas’ counsel asked Allen to explain how
he resolved problems involving the collective-bargaining
agreement and whether he dealt directly with plant employ-
ees. Allen answered:
We have an open door policy. We’re on the floor all
the time. That’s what’s unique about Tawas Industry,
the people. Gary [Holley], Larry [Hughes], myself, we
can go on the floor and work with the people, and, yes
they come up to you and talk to you. And you can re-
solve the problems right on the floor.
Under further direct examination, Allen testified, in sub-
stance, that President South administered the contract in the
same manner as Rempert had. Allen testified: ‘‘We had no
problem with Emmie. It was the same working relationship.’’
Allen further testified, in substance, that there were no termi-
nations during Rempert’s and South’s respective tenures as
the Union’s president and that no reprimands were grieved
during the same period.
The contract includes in its article XVII, entitled ‘‘Dis-
cipline and Discharge,’’ lists of offenses and disciplinary
measures. Section 3B, and section 4N of that article, under
‘‘Major Infractions’’ and ‘‘Intolerable Infractions,’’ prohibit:
Soliciting, collecting contributions, circulating petitions,
or distributing literature for any purpose without per-
mission or in any manner interfering with production or
the maintenance of discipline.
According to Allen’s testimony, Tawas has made unilateral
changes in wages, hours, and conditions of employment
since 1993. In that year, Tawas gave a $500 bonus to its bar-
gaining unit employees, and surprised them with a $1000
bonus at the end of 1994. Tawas has given its plant employ-
ees the week off between Christmas and New Years, with
pay. Also, Tawas has installed a third shift for its bargaining
unit employees. According to Allen, Tawas has upgraded its
employees’ health care package. Allen testified: ‘‘We have
a drug and alcohol policy that we have implemented, and no,
we didn’t go through the union.’’ A final item in Allen’s
array of unilateral changes was a dress code for Tawas’ plant
employees.
Tawas hired Loeffler in 1987 as a production laborer and
laid her off in November 1992. Tawas reinstated her as a
production employee on March 11. However, Loeffler was
interested in switching to an office position. In a letter to
Chairman Allen, dated May 5, Loeffler expressed interest in
switching to Tawas’ office. In a questionnaire, 10 days later,
which Tawas had asked her to complete, Loeffler wrote that
she expected to be promoted to a position in the office or
in the personnel department. She also submitted a resume in
which she expressed interest in an office position. Tawas did
not respond to her request. Thus, until her termination on
March 30, 1995, Loeffler worked for Tawas as a production
employee.
In the summer of 1994, Emily South, having decided
against another term as the Union’s president, put up a notice
at the Tawas plant asking for volunteers to sign up as can-
didates for the union offices of president, vice president,
treasurer, secretary, and steward. Loeffler was the only em-
ployee to signed up for the union presidency. Each of the
other offices had only one candidate. More than one em-
ployee signed up to be a steward. South, 2 weeks later, con-
gratulated Loeffler as the Union’s new president. At the
same time, employee Brian Kaiser became the Union’s vice
president, employee Karen Cochran was the new secretary,
and employee Estilita Kaiser became the Union’s treasurer.
Neither Loeffler nor any other member of the Union pro-
vided Tawas with written notification of any change in the
Union’s officers and stewards, as required by article II, sec-
tion 2 of their current collective-bargaining agreement.
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I based my findings regarding Loeffler’s shift changes on her tes-
timony, her letter of August 31 to Chairman Allen, and on his testi-
mony that he complied with the request in that letter.
4 Allen denied saying ‘‘Margaret doesn’t want to work here.’’ His
denial came in response to a leading question after he had provided
his recollection of the incident. Yet, earlier in the day, when asked
about this meeting, Allen testified that he could not remember asking
the employees, who wanted to work at Tawas, to raise their hands.
President Holley testified that Allen, asked the assembled employees
to raise their hands if they were happy working for Tawas and that
Loeffler was the only employee who did not raise her hand. Counsel
did not give Holley an opportunity to testify about whether Allen
said that Loeffler did not want to work at Tawas. Plant Manager
Hughes, in response to leading questions by Tawas’ counsel, agreed
that he had attended a meeting at which Allen asked employees to
raise their hands if they were happy and that Loeffler did not raise
hers. Hughes also agreed that Allen said nothing to her directly and
did not comment about her failure to raise her hand. However, as
Leoffler gave her testimony regarding this incident in a full and
forthright manner and seemed more certain of the details, I have
credited her version of this incident.
5 President Holley testified that to his knowledge, Allen did not
voice the warnings attrbuted to him by Kaiser. Holley also testifed
that he did not remember what Allen said at this meeting. Allen, in
response to leading questions, denied ever making such remarks in
a meeting, in the presence of union member or union officials. Plant
Manager Hughes, in response to leading questions, did not recall any
such comments at the meeting referred to in Kaiser’s testimony.
However, he was not given any opportunity to provide testimony
showing that he remembered what was said at that meeting. In con-
trast with Holley, Allen, and Hughes, Kaiser seemed to have a firm
recollection of what was said at this meeting and testified in a
straightforward manner. Accordingly, I have credited his testimony
regarding Allen’s warnings.
However, Loeffler made her status as the Union’s presi-
dent known to Tawas’ management. Immediately on becom-
ing the Union’s president, Loeffler, together with the new
union secretary, Cochran, went to the plant office and intro-
duced themselves in their new capacities to President Holley
and Plant Manager Hughes. Later, in August, Loeffler ap-
proached Chairman Allen and obtained his permission to
hold a union meeting between shifts.
On the following Saturday, Loeffler held a union meeting.
One of the topics at this meeting was an invitation to attend
a meeting at a local plant. Loeffler told the assembled em-
ployees that a Teamsters representative would be at that
meeting, and asked if anyone was interested in attending.
Approximately 1-week later, Loeffler met with Allen,
Holley and Hughes to exercise her preferential seniority
rights to move from the plant’s third shift to the first shift.
According to the pertinent portion of article IV, section 7 of
the current collective-bargaining agreement between Tawas
and the Union, ‘‘Preferential seniority will be given to the
President of the Union who will head the seniority list so
long as he/she remains President.’’ However, Plant Manager
Hughes denied Loeffler’s request on the ground that her pref-
erential seniority only protected her against layoff.
During this meeting, Allen said he understood that Loef-
fler had approached the Teamsters. She denied this assertion,
explaining that the Teamsters had approached the employees
and invited them to a meeting.
Allen asked Loeffler if she knew how the Union started
at Tawas. Loeffler said no. Allen explained that the former
owner, Elmer Worth, 30 or 40 years ago, initiated the Union
himself to obtain business from the big three automobile
manufacturers. Allen warned that he would move or close
the plant if he could not have total control. Loeffler called
Allen’s remarks ‘‘an illegal statement.’’ Allen replied: ‘‘You
believe what you want to believe, I’ll believe what I want
to believe.’’
By letter dated August 31, Loeffler asked Allen to assign
her to the third shift during a reorganization of Tawas’ pro-
duction shifts. Loeffler received the requested assignment.
However, Tawas ultimately eliminated the third shift and she
ended up on the second shift.3
In September or October, Tawas held a meeting at its
plant with the second shift, regarding some tampering with
machinery on that shift. Also present were Loeffler, Hughes,
Holley, and Allen. Loeffler said something on the Union’s
behalf. Chairman Allen responded: ‘‘As I said many times
before, I have no use for the union.’’
Loeffler protested. She said, ‘‘Excuse me, are you telling
us that you signed an agreement, a labor agreement between
Tawas Industries and the union and you didn’t sign it in
good faith.’’
Allen reacted by asking the assembled employee, ‘‘How
many people want to work here?’’ All the employees, except
Loeffler, raised their hands. Allen remarked: ‘‘Margaret
doesn’t want to work here.’’4 I also find from former em-
ployee Brian Kaiser’s testimony, that Allen warned the em-
ployees that if the recent union activity did not cease, he,
Allen, would move the plant, or fire all the employees and
replace them, or simply close the plant entirely.5
Sometime in November, Tawas asked its employees to fill
out employment applications which included the following
provision:
I understand that just as I am free to resign at any time,
the employer reserves the right to terminate my em-
ployment at any time, with or without cause and with-
out prior notice. I understand that no representative of
the employer has the authority to make any assurances
to the contrary.
Responding to Tawas’ request for new employment appli-
cations from its plant employees, Loeffler posted a notice on
a plant bulletin board advising them that:
An attorney ‘‘will be reviewing our contract and his ad-
vice at this time is: Do not sign this application unless
you cross out the quoted section, have it witnessed, ini-
tial it with your own initials then have your witness
sign it and date it also. Keep a xerox copy for your
own records.’’
In the same notice, Loeffler asserted that so far, the attorney
had rendered this advice at no cost to the Union.
On November 29, Allen posted a memorandum responding
to Loeffler’s notice. The memorandum did not name Loef-
fler, but began: ‘‘I was distressed to see an employee of
Tawas Industries felt the need to consult an attorney regard-
ing our recent request to complete an employment applica-
tion.’’ The last paragraph of Allen’s memorandum declared:
I am concerned and disappointed that there are a few
unhappy people trying to cause problems. You can
choose to read propaganda such as was posted, and fol-
273TAWAS INDUSTRIES
6 Allen did not dispute Loeffler’s account of his remarks to her
about ‘‘garbage ears’’ or about having a chip on her shoulder. Presi-
dent Holley did not contradict Loeffler’s credible testimony regard-
ing Allen’s remarks to her. Holley testified that he did not remember
Allen remarking about ‘‘a chip on her shoulder.’’ Nor did Holley
remember any remark about Loeffler’s attitude. Hughes did not re-
member what the meeting was about and had only a sketchy mem-
ory of Allen’s remarks. In response to leading questions, Hughes de-
nied that Holley or Allen said anything about Loeffler’s attitude or
that she had a chip on her shoulder. However, as Loeffler impressed
me as being a sincere witness, giving her best recollection in an ob-
jective manner, I have credited her testimony regarding Allen’s re-
marks to her.
low these people who have nothing to offer, or you can
choose to discuss your concerns with management and
understand the truth.
Loeffler posted the following memo at Tawas’s plant on
December 2:
Dear Union Member:
The attorney I showed the application to was in his
words to me ‘‘delighted to hear that I ruffled some
feathers.’’ He also found it interesting that they have
backed down from their insistence in filling out the ap-
plication. Also the misleading information did not and
has never came [sic.] from me. He congratulated me for
the guts to stand up for the people in here and their
rights as employees under the union contract and stands
firm in his statement that the application does take
precedence over the contract.
Enough said.
In early December, Loeffler posted her resignation as
president, on the Union’s bulletin board. Within a day or
two, Loeffler changed her mind and wrote ‘‘cancelled’’ on
her resignation.
Loeffler had wanted to resign because she was troubled by
her dealings with Allen on behalf of the Union. On one oc-
casion, when she raised questions about rumors she had
heard in the plant, Allen told Loeffler she had ‘‘garbage can
ears,’’ because she listened to gossip. On the same occasion,
Allen said that Loeffler had a ‘‘chip on [her] shoulder.’’
During other contacts with Allen, including the discussion of
her shift change request in August, he told Loeffler that she
had an attitude problem. Loeffler was also troubled by Al-
len’s threats to close or move the plant, which he made to
her twice in the context of their discussions of union con-
cerns.6
In January 1995, Loeffler went to the plant office and
complained to Allen that there were some employees who
had completed their 90-day probationary period and wanted
their names added to the seniority list. Loeffler also com-
plained that Emily South’s name was at the top of seniority
list, and asked that her own name be put there, instead. Fi-
nally, Loeffler told Allen that some of the newer employees
had not received a copy of the union contract. Allen told his
secretary, who was nearby, to take care of these matters.
Loeffler’s complaints reflected her knowledge of the col-
lective-bargaining agreement. As previously noted, article IV,
section 7 of the agreement required placement of her name
at the top of the seniority list. Under article IV, section 3 of
the agreement, ‘‘New employees shall be regarded as proba-
tionary employees for ninety (90) calendar days after being
hired, during which time they shall not be entitled to a place
on the seniority list.’’ The same section also provides that on
completion of the probationary period, ‘‘the employee’s
name shall be added to the seniority list, with the employee’s
seniority date being their most recent date of hire.’’ Under
section 6 of the same article, Tawas ‘‘agrees to recognize se-
niority in the selection of shifts for employees covered under
this agreement.’’
Soon thereafter, Tawas posted a new seniority list showing
the two new employees. However, Emily South headed the
list. Also, Loeffler noted that Tawas did not provide the re-
quested copies of the agreement to the new employees.
In January or February 1995, Tawas directed its plant em-
ployees to discontinue their practice of using the last 5 min-
utes of their shift to cleanup and washup. Instead, Tawas di-
rected them to remain at work, on the production line, until
the next shift arrived to continue production.
Loeffler and her fellow employees conferred. Loeffler re-
minded them that the current collective-bargaining agreement
provided a 5-minute period for machine cleanup and washup.
All agreed that they would adhere to the 5-minute cleanup
and washup provision in the contract.
Later, in the same morning, Supervisor Alita Wingrove,
reminded Loeffler and her colleagues of the new rule regard-
ing the last 5 minutes of their shift. Loeffler told Wingrove
that she and the other employees intended to adhere to the
contract. Loeffler told Supervisor Wingrove, ‘‘If there’s any
problems, you can send them to me.’’
The next thing Loeffler knew, she was directed to a con-
frontation with Plant Manager Larry Hughes about the 5-
minute provision and the new rule. Hughes said he under-
stood from Wingrove that Loeffler had instructed the em-
ployees to walk off the production line 5 minutes early.
Loeffler explained that she had told the employees that she
intended to follow the contract and had advised them to do
as they wished. Hughes said it was disappointing and dis-
tressing to hear that employees are encouraging such behav-
ior.
On March 27, 1995, Loeffler telephoned Tawas’ office.
She spoke to secretary Debbie Boughner, telling her about
South’s name on the top of the seniority list and suggesting
the removal of the names of two or three former employees.
Boughner said she would look into it. As far as Loeffler
knew, her requests remained unfulfilled.
However, I find from President Gary Holley’s uncon-
tradicted testimony that prior to Loeffler’s discharge, Tawas
issued a seniority list with Loeffler’s name on top of it. The
record did not disclose the issuance date. Nor was there any
showing that Tawas had ever posted it. I also find from his
testimony, that Holley knew, at the time of the hearing be-
fore me, that a supervisor had a copy of this list.
Loeffler, 2 days later, telephoned Boughner to complain
that a new seniority list had not appeared. Boughner replied
that Allen and Holley had instructed her to tell Loeffler that
if she had any questions, she must deal directly with them.
Loeffler became irate and hung up, saying, ‘‘You can tell
them from me that this is bullshit.’’
On the following day, Loeffler prepared and signed the
following notice and posted it at Tawas’ plant:
DATE: March 29, 1995
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Loeffler testified that Holley included her remarks to Debbie
Boughner on the previous day as a reason for the discharge. How-
ever, Allen, Holley, and Hughes testified that they decided to dis-
charge Loeffler because of her false and malicious assertion in her
notice that: ‘‘They continue to harass and discriminate against me.’’
As these three members of managment participated in the decision,
and gave this testimony in a frank manner, I have credited their tes-
timony in this regard.
TO: Union members
FROM: Margaret
SUBJECT: Senority [sic]
Dear Members:
On Monday, March 27, I made a telephone request to
Debby and asked her to update the seniority list by put-
ting my name at the top of the list and to remove 2
employees no longer in the union. On Wednesday I was
informed that if I have any questions I must direct them
to Ray or Gary. This list has been incorrect for a long
period of time and unless I am mistaken I am union
president. I cannot understand why management has not
taken this list down themselves and corrected it. Per-
haps they don’t want to acknowledge me as union
president? You will recall that when the recently hired
employees became eligible to enter the union a new list
was put on the board (at my request) [sic]. How many
months ago was that? And they still can’t put me at the
top [sic] at the list without making an issue out of it.
They continue to harass and discriminate against me.
On March 30, 1995, Loeffler went to work at Tawas, on
the night shift. At the begining of the shift, Supervisor
Campbell told Loeffler to go to the office. Accompanied by
two union officers, Loeffler went to the office, where she
met with Allen, Holley, Hughes, and Supervisors Campbell
and Wingrove. President Holley stated that as of that day,
Loeffler’s employment at Tawas was terminated because of
the letter she had posted, which violated the following provi-
sion in the collective-bargaining agreement.7
ARTICLE XVII—DISCIPLINE AND DISCHARGE
. . . .
Section 4. Intolerable Infractions
Penalty: Up to and including discharge on the first
offense. No previous warning has to be issued.
. . . .
G. Making false, vicious, or malicious statements
concerning any employee, the Company, or its prod-
ucts.
Holley asked Loeffler if she had anything to say. She
answered no, but added: ‘‘[B]ut you should know that
this is the best thing that could happen to me and the
union.’’ On March 31, Loeffler filed a grievance alleg-
ing that her discharge was wrongful. This attempt to
gain reinstatement failed. Tawas has not offered rein-
statement to Loeff
2. Analysis and conclusions
The General Counsel contends that Tawas violated Section
8(a)(3) and (1) of the Act when it discharged Loeffler in re-
taliation for her activity on the Union’s behalf. Tawas seeks
to avoid a finding that its treatment of Loeffler violated those
provisions of the Act by showing that her misconduct was
the sole reason for her discharge. According to Tawas’ brief,
Loeffler was disgruntled because Tawas did not satisfy her
request for an office position, and proceeded to engage in
misconduct designed to cause Tawas to discharge her.
Under Board policy, if the General Counsel makes a prima
facie showing that Tawas’ hostility toward Loeffler’s union
activity was a motivating factor in the decision to discharge
her, the discharge will be found to be unlawful unless Tawas
shows, as an affirmative defense, that it would have dis-
charged her even in the absence of the protected activity.
NLRB v. Transportation Management Corp., 462 U.S. 393,
402–403 (1983), affg. Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Accord: NLRB v. C.J.R. Trans-
fer, Inc., 936 F.2d 279, 283 fn. 3 (6th Cir. 1991). If the
record shows that the business reason or reasons which
Tawas has given to explain its decision to discharge were a
pretext—that is, that the reason or reasons do not exist or
were not in fact relied on—it necessarily follows that Tawas
has not met its burden and the inquiry is logically at an end.
Wright Line, supra at 1084.
Tawas’ management under Allen and Holley had no trou-
ble with the Union, until Loeffler came on as the Union’s
president. Loeffler’s predecessors, Rempert and South did
not annoy Allen or Holley. Allen testified that Rempert ap-
proached him with ‘‘[s]mall things he wanted to talk about,
but no major things.’’ South signed the current collective-
bargaining agreement between Tawas and the Union. Allen’s
testimony also shows that South was as easy to get along
with as was Rempert. She did not interfere with Tawas’ ef-
forts to deal directly with the bargaining unit employee.
Since coming to Tawas, Allen and Holley have maintained
‘‘an open door policy.’’ According to Allen’s testimony, he,
Holley, and Plant Manager Hughes are on the production
floor ‘‘all the time,’’ the employees come to them and talk,
and the three ‘‘can resolve the problems right on the floor.’’
The Union is not included in the resolution of these prob-
lems.
Tawas’ management has also disregarded the Union with
respect to changes in wages, hours, and conditions of em-
ployment. In testimony before me, Allen admitted awarding
bonuses to the production employees, giving them a 1-week
holiday with pay, installing a third shift for them, changing
their health care benefits, and imposing a dress code on
them, all without consulting the Union. Allen also testified
that Tawas developed and implemented a drug and alcohol
policy ‘‘and no, we didn’t go through the union.’’ Presidents
South and Rempert did not create any discord in the face of
these unilateral actions.
In the summer of 1994, when Loeffler became president
of the Union, she lost no time in letting Tawas’ management
know about it. The Union did not provide the written notice
of her accession to that office. However, she made her status
known by visiting the plant office and presenting herself as
the Union’s president, to President Holley and Plant Manager
Hughes. Later, in August, Loeffler approached Chairman
Allen and obtained his permission to hold a union meeting,
between shifts. Allen treated Loeffler’s request for time to
have a meeting as a request from the Union’s president.
275TAWAS INDUSTRIES
8 Allen’s threat to move or close the plant did not occur within
the 6-month period of limitations provided in Sec. 10(b) of the Act.
Thus, I cannot rely on these remarks to find a threat violative of Sec.
8(a)(1) of the Act. However, I shall rely on them only to shed light
on Tawas’ reasons for discharging Loeffler. 3 State Contractors, 306
NLRB 711, 716 (1992).
9 Again, Allen’s threats at the second shift meeting did not occur
within the 6-month period of limitation provided in Sec. 10(b) of the
Act. Accordingly, I have not relied on these remarks to establish
violations of the Act but only to shed light on Tawas’ decision to
discharge Loeffler. 3 State Contractors, supra,.
After Loeffler succeeded South as the Union’s president,
the climate between the Union and Tawas’ management
changed. Soon after assuming office, Loeffler told her fellow
union members of an opportunity to attend a meeting at
which a Teamsters representative would be present. Allen
heard that Loeffler had approached the Teamsters. When
Allen said he understood that she had gone to the Teamsters,
Loeffler denied that she had done so.
Not content to let the matter drop, Allen explained to
Loeffler that Tawas’ former owner had established the Union
as a ploy to obtain business from the three major automobile
manufacturers. Continuing, Allen revealed his hostility to-
ward the procedure of collective bargaining. Thus, he warned
that he would move or close the plant if he could not retain
total control.8
Immediately, Loeffler told Allen that his warning was ‘‘an
illegal statement.’’ Allen rejected Loeffler’s assessment of
his remarks, replying: ‘‘You believe what you want to be-
lieve, I’ll believe what I want to believe.’’
At a meeting between management and the second shift,
Loeffler provoked Allen when she said something on the
Union’s behalf. Allen responded: ‘‘As I said many times be-
fore, I have no use for the union.’’
Whereupon, Loeffler, in front of Tawas’ senior manage-
ment, and the second shift’s production employees, asked
Allen: ‘‘Excuse me, are you telling us that you signed an
agreement, a labor agreement between Tawas Industries and
the union and you didn’t sign it in good faith?’’
At this point, Allen’s hostility toward Loeffler’s question
surfaced. He asked the assembled employees to raise their
hands if they wanted to work at Tawas. When all except
Loeffler did so, he remarked: ‘‘Margaret doesn’t want to
work here.’’
Allen’s subsequent remarks showed that Loeffler’s union
meeting, and her efforts to cause Allen to deal with the
Union as the production employees’ bargaining representa-
tive were annoying him. He warned that if the recent union
activity did not cease, he would impose economic reprisals,
including moving the plant, discharging all the employees
and replacing them, or closing the plant.9
Undaunted, Loeffler defied Allen in November, when
Tawas directed the plant employees to complete employment
applications which included language recognizing that Tawas
could discharge the employee ‘‘at any time with or without
cause and without prior notice.’’ She posted a notice in the
plant advising the employees to ‘‘cross out’’ the entire sec-
tion including the quoted language before signing the appli-
cation.
On November 29, Allen issued and posted a memorandum
to the plant employees responding to Loeffler’s notice to the
plant employees. In its first sentence, Allen’s memo left no
doubt that he was piqued by her resort to an attorney to de-
termine if the bargaining unit employees had a right to cross
out the objectionable language in the application. Allen’s
hostility carried over to the last paragraph of his memo,
where he expressed concern and disappointment ‘‘that there
are a few unhappy people trying to cause problems.’’ In the
context of the rest of his memo, Allen considered Leoffler
an unhappy person ‘‘trying to cause problems.’’
The last paragraph of Allen’s memorandum offered the
employees a choice between following ‘‘these people who
have nothing to offer’’ or ‘‘discus[sing] your concerns with
management.’’ This suggestion was an invitation to the plant
employees to abandon the Union as their representative and
to deal directly with Allen and his colleagues in manage-
ment. Thus did Allen once again manifest hostility toward
collective-bargaining with the Union. I find that by Allen’s
suggestion, Tawas interfered with, restrained, and coerced its
employees in the exercise of their right under Section 7 of
the Act to bargain collectively through the Union, and there-
by violated Section 8(a)(1) of the Act. Mark Twain Marine
Industries, 254 NLRB 1095, 1102 (1981).
On December 2, Loeffler followed up her attack on the
application with a boastful memorandum which she posted at
Tawas’ plant. In the first sentence, she reported that an attor-
ney, who had seen the application was ‘‘delighted to hear
that I ruffled some feathers.’’ Continuing, Loeffler reported
that Tawas was no longer seeking a new employment appli-
cation and that the same attorney had congratulated her for
here courageous stand on behalf of the bargaining unit. She
concluded with the attorney’s advice that the application
would take precedence over the collective-bargaining agree-
ment.
Allen’s memorandum of November 29 showed that he was
alert to Loeffler’s actions as the Union’s president. It also
showed that Loeffler’s opposition to Tawas’ request for a
new employment application from the plant employees trou-
bled him. I am thus led to find that Loeffler’s posted memo
of December 2 further aggravated Allen.
It was Allen’s animosity toward her, which caused Loef-
fler to consider resigning as union president in early Decem-
ber. Allen’s hostility to her union activity surfaced in their
confrontations. When Loeffler asked about some rumors she
had heard on the plant floor, he rebuked her. He said she had
‘‘garbage can ears’’ and ‘‘a chip on her shoulder.’’ On other
occasions, Allen accused Loeffler of having an attitude prob-
lem. Twice, in 1994, while she was discussing union con-
cerns with him, Allen threatened to close or move the plant.
In January 1995, Loeffler sought to enforce the collective-
bargaining agreement. She insisted that Tawas comply with
article IV, section 7 of the agreement, which required that
her name be placed at the top of the plant seniority list. She
also pressed Tawas to honor its obligation under article IV,
section 3 to place the names of two employees on the senior-
ity list, as they each had completed the prescribed 90-day
probationary period. She complained that Emily South’s
name remained atop the seniority list and that there were
some employees, who had completed the probationary 90
days, and were not shown on the seniority list. She also
asked Tawas to give copies of the collective-bargaining
agreement to those of the new employees who had not re-
ceived one. In Loeffler’s presence, Allen told his secretary
to take care of these matters.
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Soon after Allen had directed his secretary to take care of
Loeffler’s requests, a new seniority listed appeared with the
two new employees’ names included. However, Loeffler
noted that Emily South headed the list and the requested cop-
ies of the collective-bargaining agreement had not material-
ized.
In January or February 1995, Loeffler exercised a leader-
ship role in the Tawas plant employees’ defiance of manage-
ment’s attempt to discontinue unilaterally the 5-minute clean-
up and washup period, which they enjoyed under the con-
tract. When Supervisor Wingrove attempted to enforce the
requirement that the employees remain on the production line
for the last 5 minutes of their shift, Loeffler intervened on
behalf of the employees. Loeffler said she and the other em-
ployees would adhere to the contract and use the last 5 min-
utes of their shift to cleanup and washup. This response led
to a confrontation with Plant Manager Hughes, who was
irked by Leffler’s effort to enforce the contractual 5-minute
cleanup and washup rule.
On March 27, 1995, Loeffler approached Allen’s secretary,
Boughner, and complained that Emily South’s name re-
mained atop the seniority list. Loeffler also recommended re-
moval of the names of two or three former employees from
the list. Loeffler contacted Boughner, 2 days later, and com-
plained that Tawas had not issued a new seniority list.
Boughner told Loeffler to take her questions directly to Allen
and Holley. Loeffler was incensed by this reply and ended
the conversation with: ‘‘You can tell them from me that this
is bullshit.’’
On the day after her second encounter with Boughner,
Loeffler posted the notice quoted above at pages 8 and 9.
The final sentence of Loeffler’s notice was: ‘‘They continue
to harass and discriminate against me.’’ The notice, ad-
dressed to the Union’s members, publicized Loeffler’s com-
plaint that management’s apparent failure to comply with her
requests to put her name at the top of the seniority list, as
required under the collective-bargaining agreement, was but
another instance of its effort to make her presidency uncom-
fortable for her. There is no evidence that Loeffler posted
this notice with any expectation that her fellow union mem-
bers would take any action to support her in this matter.
That same day, Tawas discharged Loeffler for making a
false and malicious statement, when she complained of har-
assment and discrimination in her memo of March 29, 1995.
Holley, who imposed the discharge, invoked section 4, article
XVII of the collective-bargaining agreement, which permits
Tawas to discharge employees for: ‘‘Making false, vicious or
malicious statements concerning any employee, the Com-
pany, or its products.’’
In sum, I find that the General Counsel has made a strong
showing that Loeffler’s union activity motivated Tawas’ de-
cision to discharge her. Thus, the record shows that Loef-
fler’s actions as the Union’s president included continuing
efforts to enforce the collective-bargaining agreement. Such
efforts constituted union activity protected by Section 7 of
the Act. Metropolitan Edison Co. v. NLRB, 460 U.S. 701,
703 (1983). The record also makes clear that Tawas’ man-
agement, particularly Chairman Allen, was openly hostile to
Loeffler’s union activity. Surely the timing of Tawas’ deci-
sion to discharge her on the very day she posted her notice
to the Union’s membership strongly suggests that her union
activity provoked it.
Tawas contends that its discharge of Loeffler did not vio-
late the Act because union activity played no part in the de-
cision to do so. Instead, Tawas claims that Loeffler’s false
and malicious statement in her notice to the union members,
dated March 29, 1995, provoked Tawas to discharge her. Ac-
cording to Tawas, Loeffler’s allegations of harassment and
discrimination violated the collective-bargaining agreement’s
prohibition against ‘‘false, vicious, or malicious statements
concerning [Tawas].’’
At the hearing before me, Tawas introduced testimony of
Allen, Holley, and Hughes to support its contention that
Loeffler’s allegations of harassment and discrimination were
false and malicious. However, their testimony did not go be-
yond a denial of these accusations. In contrast, Loeffler’s
credited testimony showed that she felt harassed by Allen’s
assertions that she had ‘‘garbage can ears’’ and had a ‘‘chip
on [her] shoulder.’’ Her credited testimony also showed that
she considered Allen’s warnings about closing the plant, if
he could not maintain control, to be a form of harassment.
Coming in the context of her dealings with management as
the Union’s president, these warnings and Allen’s expressed
disrespect for the Union made Loeffler feel uncomfortable,
to the point that she prepared and briefly posted her resigna-
tion from the Union’s presidency. I find that Loeffler had
reason to feel harassed by Allen.
Loeffler’s unsuccessful efforts to have her name at the top
of the seniority list provided ground for her complaint of dis-
crimination. After all, the collective-bargaining agreement re-
quired Tawas to do so, and Tawas had accorded that privi-
lege to her immediate predecessor.
Tawas’ assertion that Loeffler’s allegations were malicious
was not substantiated in the record before me. According to
Tawas’ brief, Loeffler was embittered by its refusal to grant
her request for an office position and went out of her way
to provoke management. However, there was no showing
that Loeffler harbored any resentment against Tawas or its
management because of that refusal.
In sum, I find that Tawas’ management seized on Loef-
fler’s complaint of harassment and discrimination as a pre-
text for putting an end to her efforts to pressure Tawas into
abiding by the collective-bargaining agreement. Thus, I fur-
ther find that by discharging Loeffler because of her activity
as the Union’s president, Tawas violated Section 8(a)(3) and
(1) of the Act. Howard Electric Co., 285 NLRB 911, 913
(1987).
I also find, as urged by the General Counsel, that the rule,
on which Tawas relied as excuse for Loeffler’s discharge,
violated the Act. The Board has recognized that:
[S]uch a rule, because it prohibits and punishes the
merely false, as opposed to the malicious, or vicious,
is . . . unlawful per se, because Section 7 of the Act
protects merely inaccurate employee statements. The
rule runs afoul of the fact that these false statements
may well relate to concerted activities. Thus, the rule
violates Section 8(a)(1) of the Act. [Citations omitted.
Independent Stations Co., 284 NLRB 394, 397 (1987).]
That Tawas and the Union maintained the rule in their col-
lective-bargaining agreement does not cure its infringment
upon the bargaining unit employees’ Section 7 rights. For
under Board law, the Union, by agreeing to the inclusion of
277TAWAS INDUSTRIES
10 A similar provision appears as a major infraction in sec. 3B of
art. XVII of the current collective-bargaining agreement between
Tawas and the Union.
that rule in the collective-bargaining agreement, ‘‘could not
waive the employees’ right to protected communications.’’
Universal Fuels, 298 NLRB 254, 257 (1990). Accordingly,
I find that by maintaining section 4G of article XVII in its
collective-bargaining agreement with the Union, as quoted
above, Tawas has violated Section 8(a)(1) of the Act.
I further find that Tawas enforced the unlawful rule
against Loeffler in reprisal for her union activity. Accord-
ingly, I find that by this conduct, Tawas discriminated
against Loeffler in violation of Section 8 (a)(3) and (1) of
the Act. Rooney’s at the Mart, 247 NLRB 1004, 1012
(1980).
B. The Restriction on Solicitation and Distribution
The current collective-bargaining agreement between
Tawas and the Union includes the following provision:
ARTICLE XVII—DISCIPLINE AND DISCHARGE
. . . .
Section 4. Intolerable Infractions
Penalty: Up to and including discharge on the first
offense. No previous warning has to be issued.
. . . .
N. Soliciting, collecting contributions, circulating pe-
titions, or distributin [sic] literature for any purpose
without permission or in a manner interfering with pro-
duction or the maintenance of discipline.10
The General Counsel contends, and I agree, that under
Board policy, the quoted restriction violates Section 8(a)(1)
of the Act. I find this rule, on its face, overly broad, i.e., it
is not restricted to working time. Under Board law, such a
rule is presumptively unlawful. Our Way, Inc., 268 NLRB
394 (1983). However, Board policy would permit Tawas to
avoid the finding of a violation in the instant case by show-
ing through extrinsic evidence that it communicated the rule
to its employees or applied it so as to show an intent to per-
mit solicitation and distribution during breaktime or other pe-
riods when employees are not actively at work. Our Way,
supra at 395 fn. 6, citing Essex International, 211 NLRB
749, 750 (1970).
Tawas has not shown that it told its employees that solici-
tation and distribution during nonworking time was per-
mitted. Nor has Tawas shown, with respect to the ‘‘distribu-
tion’’ portion of its rule that it permits distribution in non-
work areas of its plant.
Accordingly, I find that Tawas has failed to show that the
rule meant anything other than a prohibition of all solicita-
tion and distribution. Therefore, I find that Tawas has vio-
lated Section 8(a)(1) of the Act by maintaining an overly
broad rule against solicitation and distribution in its current
collective-bargaining agreement with the Union. MTD Prod-
ucts, 310 NLRB 733 (1993).
CONCLUSIONS OF LAW
1. By discharging Margaret Loeffler on March 30, 1995,
for acting in her capacity as president of the Union, Tawas
Independent Workers Association, a labor organization with-
in the meaning of Section 2(5) of the Act, Respondent,
Tawas Industries, Inc., has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2. By maintaining the following rule in its collective-bar-
gaining agreement with the Union, and Respondent has vio-
lated Section 8(a)(1) of the Act:
ARTICLE XVII—DISCIPLINE AND DISCHARGE
. . . .
Section 4. Intolerable Infractions
Penalty: Up to and including discharge on the first
offense. No previous warning has to be issued.
. . . .
G. Making false, vicious, or malicious statements
concerning any employee, the Company, or its prod-
ucts.
3. By enforcing article XVII, section 4G of its collective-
bargaining agreement against employee Margaret Loeffler for
acting in her capacity as president of the Union, Respondent
violated Section 8(a)(3) and (1) of the Act.
4. By posting a notice suggesting that its employees by-
pass the Union and deal directly with management, Respond-
ent violated Section 8(a)(1) of the Act.
5.By maintaining a rule in two provisions of its collective-
bargaining agreement with the Union, which prohibits the
following conduct by employees, Respondent has violated
Section 8(a)(1) of the Act:
Soliciting, collecting contributions, circulating petitions,
or distributin [sic] literature for any purpose without
permission or in a manner interfering with production
or the maintenance of discipline.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployee Margaret Loeffler, it must offer her reinstatement and
make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest, as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
I shall also recommend that Respondent be required to re-
move from its files any references to the discharge which I
have found violative of the Act, as set forth above, and no-
tify employee Loeffler, that it has done so and that it will
not use this discharge against her in any way.
[Recommended Order omitted from publication.]